Massachusetts Protective Ass'n v. Cranford, 102 So. 171

Massachusetts Protective Ass'n v. Cranford

102 So. 171 | Miss. | 1924

Holden, J.,

delivered the opinion of the court.

This is an appeal from a judgment for five thousand dollars against the appellant, Massachusetts Protective Association, in favor of Mrs. Sallie L. Cranford, on an accident and health policy of insurance issued by appellant and payable to the appellee in the event of the accidental death of Daniel W. Cranford, her husband (death by suicide excluded). The policy provided for an indemnity of fifty dollars per week for disability on account of injury or disease.

The declaration charged that the appellant insurance company was indebted to appellee in the sum of five thousand dollars upon the insurance policy, on account of the death of the insured, Daniel W. Cranford, who was alleged to have been accidentally killed, and that death did not result from self-destruction while sane or insane; and “that due and timely notice was given to the said defendant, corporation, of the death of the said .Daniel W. Cranford;” and that the appellant insurance company failed and refused to pay the amount due under the policy. After all of the evidence in the case was introduced on both sides, the lower court granted a peremptory instruction to find for the plaintiff.

The appellant, Massachusetts Protective Association, defended the suit upon several grounds, and at the conclusion of the plaintiff’s testimony it moved the court to exclude the testimony from the jury and direct a verdict for the defendant, which was refused by the court; and then, after the defendant had introduced its testimony, it requested a peremptory instruction upon the whole case, and this request was refused.

The grounds urged for reversal are:

First, that the lower court erred in granting a peremptory instruction to find for the appellee, because the proof in the case was sufficient to show the deceased committed suicide, and that the proof is conclusive of this fact, and that, since the insurance policy did not *897cover death, by suicide, the court should have granted the peremptory instructions asked by the appellant, but that, if mistaken in this view as to the appellant being entitled to á peremptory instruction, then it was error for the court to refuse to let the jury pass upon the question of fact as to whether the death was due to accident or self-deistruction.

And, second, it is contended the declaration did not charge that due notice and proof of loss under the terms of the policy were made, nor allege a good reason for this failure.

And, third, the appellant contends it was released from any liability under.the accident policy because it paid the sum of three hundred fifty dollars to the appellee, and for which she released all further claims under the policy, and that the release being in writing, parol testimony was inadmissible to contradict it or explain it, and therefore there was no liability for the death of the insured.

And, fourth, the appellant contends the lower court erred in refusing to permit it to introduce a certificate of the record of the death of Daniel W. Cranford, which the law provides may be issued by the state board of health bureau of vital statistics. Hemingway’s Code, section 4872, and that such certificate shall be primafacie evidence in all courts of the facts therein stated. This certificate purported to state that “the cause of the death was ‘suicidal.’ ” The certificate was offered by the appellant for the purpose of establishing* the fact that the deceased committed suicide, and therefore his death was not accidental.

On the first point presented by the appellant, we have carefully examined the evidence in the record which tended to show that Mr. Cranford committed suicide, and without detailing all of the evidence tending to prove that disputed fact, we deem it enough to say that we think the facts and circumstances in evidence were sufficient to show the death was suicidal. However, the *898evidence does not reach, the decree of conclusiveness that the deceased committed suicide, because there are facts and circumstances in the case, together with the legal presumption against suicide, that raises a conflict which should, have been submitted to the jury to determine from all the proof in the case whether the death was accidental or suicidal. Therefore the court erred in granting the peremptory instruction for the appellee.

■ On the second proposition presented by appellant, thp declaration charged that due notice had been given of the death, and we find from the proof in the case that notice of the death, within the time prescribed by the policy, was given to the appellant through its agent, -one Mr. Williams, who was the local agent to collect the dues quarterly on the insurance policy, and who collected and paid over to the appellee three hundred fifty 'dollars as indemnity for seven weeks of disability on account of the sickness of the deceased immediately preceding his death.

This agent communicated the fact of the death to the appellant when he reported and filed with it the written claim for the sick indemnity, and it is unquestionably true that the appellant received notice of the death through this agent. It is unnecessary to decide whether or not Mr. Williams was a general agent authorized to receive notice, because in any event he did serve the appellant with notice when he made the proof of .the sick-, ness and made payment of the indemnity under and in connection with the policy involved in this case. It seems to be undisputed that the appellant received timely and ample notice from this source.

Furthermore, the appellee herself duly notified the appellant by mail that her husband had died and would make the proof of loss in the manner prescribed by the terms of the policy, but no blanks were furnished her, as provided in the policy, nor any attention paid to the notice she mailed to appellant of her husband’s death.

*899It is shown in the record that the agent Williams had informed the appellant that the deceased committed suicide, and, of course, in view of this information the appellant- took no steps to -furnish blanks upon which to make proof of loss nor to investigate the death, because there would be no liability for the death by self-destruction. And so matters drifted along for some months, until the attorneys in the ease notified appellant that’ they had the policy for collection, and offered to make any proof of loss or give any information that the appellant might require. The correspondence between the attorneys and the appellant in this regard resulted in nothing, and this suit to recover the five thousand dollars under the policy for the accidental death of Mr., Cranford followed.

We think there is no merit in the point that no notice was pleaded or given or proof of loss furnished, because the whole record reflects the fact that the appellant knew of the death of deceased a few days after its occurrence, and the terms of the policy with reference to notice and proof of loss were substantially complied with so far as the appellee was able to comply.

We regard it as unnecessary to discuss the question of the invalidity of those provisions of the policy which prescribe limitations as to notice or in which suit may be brought, nor to discuss the cases of Stuyvesant v. Smith (Miss.), 99 So. 575, or Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453, which latter case deals with the question of agency, and possibly applicable to the agent Williams in this case, for the reason that the proof in the case before us shows the requirements of the policy were reasonably complied with so far as appellee was able, and when the appellant failed to furnish the blanks after notice was given, then the terms of the policy had been complied with, and the appellant was warranted in assuming that liability was denied.

On the third ground, that the appellant was released 'from any further liability under the policy after it had *900paid appellee the three hundred fifty dollars and secured a written release, we think there is no merit in this contention, because the undisputed proof in the case shows the' release signed by appellee for the three hundred fifty dollars was intended by all parties to cover only the indemnity of fifty dollars a week for seven weeks of sickness of the deceased immediately before his death. The draft for three hundred fifty dollars signed and cashed by the appellee has this written on it, “The indorsement hereon to be in full settlement of all claims of any further liability resulting from under said policy. ’ ’ And it is contended parol testimony was erroneously, permitted to show or explain that this written release was given to cover only the sick indemnity, that parol testimony is not admissible for this purpose, and that the receipt is a release in full from all further liability under the policy. “Receipts may be explained by parol testimony, although they recite that they were given in full settlement between the parties.” Dewees v. Bostick Lbr. Co., 96 Miss. 253, 50 So. 865; 22 C. J. 1140.

Coming now, lastly, to appellant’s contention that the lower court ought to have permitted it to introduce the certificate of the bureau of vital statistics under section 4872, Hemingway’s Code, as an aid in establishing the fact that the insured committed suicide, as the certificate itself stated the death was “suicidal,” we do not think the statute was intended to' authorize certificates to be introduced as prima-facie evidence except as to the prime physical cause of death; and we do not now decide whether such certificates are ever admissible in such cases, 'because it is unnecessary to pass on it. This certificate attempts to state the cause of the cause ¡of death, that is, it attempts to state how, why, and by whom the wound was inflicted that caused the death. Its authorized purpose under the act was no more than to state the cause of the death, viz., by a gunshot wound, as in this case, and not whether the wound was inflicted *901by any certain person, by assassination, by accident, or by intentional self-destrnction. This certificate undertakes to do more than the law authorizes, its statement of fact goes beyond the purview of the law authorizing it, and was properly excluded by the lower court.

The record in the case discloses numerous facts and circumstances surrounding the death of the deceased, which point strongly to the fact that the deceased committed suicide; but, on the other hand, the evidence may reasonably sustain the theory that the death was accidental. No eyewitness saw it, and the legal presumption against self-destruction being in favor of the appellee, the burden was upon the appellant to overcome it and establish the suicide, while the burden was upon the appellee to prove accident upon the whole case; and in view of the clear conflict in the proof, we think the question of fact should be submitted to a jury.

In view of these conclusions, the judgment of the lower court is reversed, and the case remanded for a new trial.

Reversed and. remanded.